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The Due Process Plank

An article of mine has just been accepted for publication by the Seton Hall Law Review, and I thought it worth mentioning here. The full text is available for free at SSRN, and here is the abstract:

The Republican Party’s national platform of 1860 is useful for interpreting the Fourteenth Amendment of the U.S. Constitution, which was written just six years later by a Republican-controlled Congress. However, the platform is frequently misunderstood. The due process plank of the platform is often portrayed as supporting the doctrine called substantive due process, but a close look at the platform shows that it did not actually support that doctrine. The due process plank aimed to protect liberty in free federal territories, rather than in areas like the District of Columbia where substantive due process would have applied equally. Congress largely stopped supporting slavery 150 years ago, in 1862, but not because of any substantive penumbra of the Due Process Clause.

It’s not only an interesting historical subject, but also has ramifications for modern-day constitutional law.

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